Why same-sex marriage won't be on the crowded November ballot

Jeremy Mathis with wife and daughter Coy at a press conference last summer.

Jeremy Mathis is a strong supporter of LGBTQ rights. Early last year, Mathis and his wife filed a complaint against the school that their transgender daughter, Coy, attended in Colorado Springs, because the school would not let her use the female bathroom. The school reversed its decision, but the fight for equality wasn't over for Mathis, who explored filing a citizen initiative that would take on the Colorado's constitutional ban against gay marriage -- itself the result of a citizen initiative.

Because of that 2006 amendment, the Colorado constitution now states, "Only a union of one man and one woman shall be valid or recognized as a marriage in this state." If Mathis's Initiative 43 had gotten to the ballot and been approved by voters, that section would have been amended to say, "A union of same-sex couple or a union of opposite-sex couple shall be valid and recognized as a marriage in this state and shall be treated equally in all respects under the law with no legal distinction."

Colorado currently recognizes civil unions, but not marriage, for same-sex couples

Coy Mathis.

When Mathis and his wife started the fight for their daughter's right to use the female bathroom, the story gained nationwide attention. At the time, Dave Montez was working for the Gay and Lesbian Alliance Against Defamation (GLAAD), and got to know the Mathis family well; he's now the executive director of One Colorado, which is pushing for same-sex marriage. A few months after Mathis started exploring getting Initiative 43 on the ballot, he ran into Montez at an event in Colorado Springs. After some discussion, they both decided that another ballot initiative was not the way to proceed at this time: Taking the issue to court was likely to have a better outcome.

And there's certainly been plenty of court action on the issue this summer. On July 9, Adams County Judge C. Scott Crabtree ruled that the ban against gay marriage in Colorado is unconstitutional, then immediately stayed his ruling. Attorney General John W. Suthers quickly appealed Crabtree's decision to the Colorado Supreme Court, stressing the need for uniformity and clarity in the laws of marriage.

Crabtree's action came only days after the 10th Circuit Court of Appeals ruled that Utah's ban on gay marriage was unconstitutional -- inspiring Boulder county clerk Hillary Hall to begin issuing same-sex marriage licenses. Suthers went to court to request an injunction against Hall; the day after Crabtree's ruling came down, a district court judge in Boulder denied Suthers' request.

On July 17, One Colorado, together with partners Why Marriage Matters, Freedom to Marry and the ACLU, delivered a petition signed by 5,000 Coloradans to Suthers's office, urging him not to appeal Crabtree's decision. But yesterday, in what he recognized as "an extraordinary request," Suthers asked the Colorado Supreme Court to order Hall to stop issuing the licenses.

In his filing, Suthers stated: "The state has had no choice but to pursue an additional court order providing for the uniform application of Colorado's marriage laws pending final determination of the constitutional claims for same-sex marriage."

And if the court doesn't come down with the correct determination, Mathis says he is prepared to take the issue to the people. But in the meantime, don't look for Initiative 43 on Colorado's crowded ballot.

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